Will The Feds Crack Down On Medical Marijuana After Allowing Legalization Of Recreational Marijuana?

Last week Washington’s legislature ended its 2014 session without approving new restrictions on medical marijuana, a step that supporters portrayed as necessary to prevent federal interference as the state begins allowing the sale of cannabis for recreational use. After all, the Justice Department indicated in an August 29 memo that it would allow legalization to proceed in Washington and Colorado only if both states created “strong and effective regulatory and enforcement systems.” Washington’s medical marijuana dispensaries, which are not licensed or regulated by the state, seem inconsistent with that expectation.

Jenny Durkan, the U.S. attorney for the Western District of Washington, said as much the very day the DOJ memo was released. “The Department guidance is premised on the expectation that the state will implement strong and effective regulatory and enforcement systems,” she warned. “The continued operation and proliferation of unregulated, for-profit entities outside of the state’s regulatory and licensing scheme is not tenable and violates both state and federal law.”

Now that it looks like these unregulated entities will continue selling marijuana for another year or so at least, competing with the state-licensed stores that are supposed to start opening this summer, will Durkan feel compelled to crack down? Probably not, judging from her past behavior and a close examination of her public statements. Patience certainly seems like a more appropriate response, especially since Durkan is largely responsible for creating the situation that she now views as “not tenable.”

In Washington it has been legal for patients with doctor’s recommendations and their “designated providers” to grow and possess marijuana since 1998, when voters passed an initiative to that effect. But there has never been an explicitly approved commercial source of marijuana for patients who were not up to growing their own medicine and could not find someone willing to do it for them. Until 2011 dispensaries operated based on a model in which a given seller became the temporary designated provider for each patient who bought cannabis from him. That year the legislature finally approved a bill aimed at regulating the medical marijuana business. But Gov. Christine Gregoire vetoed almost all of the bill, citing advice from Durkan and Michael Ormsby, the U.S. attorney for the Eastern District of Washington.

“The Washington legislative proposals will create a licensing scheme that permits large-scale marijuana cultivation and distribution,” Durkan and Ormsby wrote in a letter to Gregoire. “This would authorize conduct contrary to federal law…Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries…Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers, should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA [Controlled Substances Act].”

Gregoire interpreted that last sentence as a threat to prosecute state employees involved in licensing and regulating medical marijuana suppliers. She therefore vetoed all the provisions of the medical marijuana bill that would have put them in that position. All that was left was a provision letting patients grow cannabis in “collective gardens” rather than buy it from the state-licensed outlets that were supposed to be the main source of medical marijuana. That provision, which allowed up to 10 patients and 45 plants per garden, became the new legal rationale for dispensaries. Today medical marijuana suppliers in Washington typically operate as collective gardens (or collections of collective gardens) with rotating memberships: When a patient enters a dispensary, he becomes a member for the length of the transaction.

There are hundreds of such dispensaries in Washington, with as many as 200 in Seattle alone (depending on whether you count delivery operations or just storefronts). John Schochet, deputy chief of staff in the Seattle City Attorney’s Office, says state appeals courts have approved the idea of collective gardens with rotating memberships. “I couldn’t give you a clear answer as to whether it’s illegal under criminal law,” he says, but “no one’s been convicted for selling marijuana illegally using a collective garden in King County [where Seattle is located] at least.” Seattle has not tried to close down the dispensaries, although last year the city council approved an ordinance that will limit them to 45 plants and 24 ounces per location unless they obtain state licenses by January 1, 2015.

Durkan, whose office is in Seattle, views these dispensaries as illegal under state law as well as federal law. Still, she has generally tolerated them. Ormsby has been notably more aggressive in prosecuting medical marijuana suppliers, but dispensaries openly operate in his district as well. Sean Green, the recipient of Washington’s first cultivation license for recreational marijuana, has run a dispensary in Spokane for three years. The online directory WeedMaps lists about 30 dispensaries (including delivery operations) in eastern Washington.

Durkan’s office would not comment on her enforcement plans, and I have not received a response from Ormsby’s office. But in an interview with KUOW, the NPR station in Seattle, last week, Durkan provided some clues. “Under Washington state law, dispensaries are not legal,” she said. “Every dispensary that is operating is an illegal business.” At the same time, she suggested that her office will take action against dispensaries only if “they cross the line into implicating one of the public-interest factors that the Department of Justice has cited.”

Durkan was referring to the “enforcement priorities” listed in Deputy Attorney General James Cole’s August 29 memo, which advised federal prosecutors on how to deal with marijuana businesses that comply with state law. Cole suggested that prosecuting such businesses would not be a good use of federal resources unless it was aimed at addressing one or more of eight concerns, including violence, trafficking in other drugs, involvement by organized crime, and diversion of marijuana to minors or other states. Durkan seems to be extending that prosecutorial forbearance even to businesses that, in her view, do not comply with state law, provided they do not pose any of the threats mentioned by Cole.

Durkan’s description of her office’s drug-related work offers further reason to think closing down dispensaries won’t be a high priority for her. “The vast majority of the cases we bring are cases that involve or implicate Mexican [cartels],” she said. “There are huge quantities of cocaine, heroin, methamphetamine, and bulk cash being transported internationally and between states. That’s where we’re going to focus our resources. We do not have the resources, nor is it our job, to focus on smaller drug cases that can be handled locally.”

Philip Dawdy, media and policy director at the Washington Cannabis Association, was encouraged by Durkan’s remarks. “With the feds, things are always unpredictable,” he says, “but based on Jenny Durkan’s comments on Friday, I’d say we are not a big priority for them unless people are running afoul of the guidance in [the Cole memo]. The piece of her comments that concerns me the most is her statement that all dispensaries in the state are illegal. There is state law that protects them if they’re operating as collective gardens, and I hope the feds will respect both that law and the various local ordinances that have been passed over the last three years allowing for them.” That seems only fair, since the feds had a hand in killing legislation that could have created the “strong and effective regulatory and enforcement systems” they are now demanding.

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